Citation Nr: 1409805
Decision Date: 03/11/14 Archive Date: 03/20/14
DOCKET NO. 12-10 671 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia
THE ISSUES
1. Entitlement to a higher initial disability rating (evaluation) for posttraumatic stress disorder (PTSD) in excess of 30 percent.
2. Entitlement to service connection for diabetes.
3. Whether new and material evidence has been received to reopen service connection for skin tumors.
4. Whether new and material evidence has been received to reopen service connection for a right eye disorder.
5. Whether new and material evidence has been received to reopen service connection for prostatitis.
6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).
REPRESENTATION
Appellant represented by: Amy Fochler, Attorney
WITNESS AT HEARING ON APPEAL
The Veteran (Appellant)
ATTORNEY FOR THE BOARD
B. J. Dempsey, Associate Counsel
INTRODUCTION
The Veteran, who is the appellant, served on active duty from June 1968 to April 1972.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which, in relevant part, granted service connection for PTSD and assigned a 10 percent initial disability rating, effective December 22, 2010. In July 2011, the Veteran submitted a notice of disagreement (NOD) with the initial disability rating assigned by the RO.
In November 2011, the Veteran presented testimony relevant to the appeal at a Decision Review Officer (DRO) hearing at the RO in Roanoke, Virginia. A transcript of the hearing has been associated with the physical claims file. Following the DRO hearing, in an April 2012 rating decision, the RO assigned a higher disability rating for PTSD of 30 percent disabling, effective December 22, 2010. In May 2012, the Veteran submitted a notice of disagreement with the 30 percent disability rating.
In November 2012, the Veteran presented additional testimony relevant to the appeal at a Board hearing held before the undersigned Veterans Law Judge in Roanoke, Virginia (i.e., a Travel Board hearing). A transcript of the hearing has been associated with the physical claims file.
During the November 2012 Board hearing, the Veteran's representative asserted that the Veteran's present condition supports a TDIU; therefore, the issue of entitlement to TDIU is raised and has been listed on the title page. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that, if the claimant or the record reasonably raises the question of whether a veteran is unemployable due to disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether TDIU is warranted as a result of that disability).
The Board has reviewed the Veteran's physical claims files, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case.
The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office.
FINDINGS OF FACT
1. Prior to the promulgation of a decision by the Board, the Veteran, through his representative, stated his intent to withdraw the appeal of the issues of service connection for diabetes, and whether new and material evidence has been received to reopen service connection for skin tumors, a right eye disorder, and prostatitis, during a hearing before the Board in November 2012.
2. For the entire rating period, service-connected PTSD has been manifested by occupational and social impairment with reduced reliability and productivity due to symptoms which include the inability to adapt to stressful situations, difficulty establishing and maintaining effective social relationships, impaired impulse control with irritability and violence, hypervigilant behavior, fear and anxiety in crowds, memory impairment, and poor sleep with nightmares.
CONCLUSIONS OF LAW
1. The criteria for the withdrawal of an appeal by the Veteran regarding the issues of service connection for diabetes, and whether new and material evidence has been received to reopen service connection for skin tumors, a right eye disorder, and prostatitis, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2013); 38 C.F.R. § 20.204 (2013).
2. Resolving reasonable doubt in the Veteran's favor, for the entire initial rating period, the criteria for an initial disability rating of 50 percent for PTSD, but no higher, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Withdrawal of Issues
The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative and must be in writing, except for appeals withdrawn on the record at a hearing. 38 C.F.R. § 20.204.
In this case, during the November 2012 Board hearing, the Veteran, through his representative, stated that he wished to withdraw his appeal regarding the issues of service connection for diabetes, and whether new and material evidence has been received to reopen service connection for skin tumors, a right eye disorder, and prostatitis; hence, there remain no allegations of errors of fact or law for appellate consideration on these issues. The appeal as to these issues was effectively withdrawn in November 2012. In each instance, withdrawal of the appeal included withdrawal of the notice of disagreement and the substantive appeal. See 38 C.F.R. § 20.204(c).
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).
When an initial rating appeal comes before the Board following a decision to grant service connection and assign an initial rating, no additional VCAA notice is required. Courts have held that, once service connection is granted and the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement).
VA has also satisfied its duty to assist the Veteran in developing the issue on appeal. The RO obtained VA and private medical records, as well as Social Security Administration records regarding disability benefits. See 38 C.F.R. § 3.159(c)(2). The information and evidence that has been associated with the Veteran's claims file also includes VA compensation and pension examinations, and lay statements submitted by the Veteran and his friends and family. After a complete and thorough review of the claims file, the Board concludes that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file. The Veteran has not contended otherwise.
Additionally, VA met its duty to provide a medical examination. In February 2011 and February 2012, the Veteran underwent VA mental health examinations. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, both examinations are sufficient because the VA examiners considered pertinent evidence of record, including the Veteran's medical history and personal statements, interviewed the Veteran, and observed the Veteran in a clinical setting. The examination reports set forth detailed examination findings in a manner that allows for informed appellate review under applicable VA laws and regulations, and the examiners offered the necessary findings. Therefore, the Board finds that the examinations are sufficient and adequate for rating purposes.
As indicated under the facts and circumstances in this case, VA has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. See Mayfield, 444 F.3d at 1328. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the issue addressed on the merits in this decision.
Disability Rating Criteria and Analysis
Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3.
The Court has indicated that a distinction must be made between a veteran's dissatisfaction with original ratings and dissatisfaction with determinations on later filed claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In an appeal for a higher original rating after an initial award of service connection, all the evidence submitted in support of a veteran's claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id.; 38 C.F.R. § 4.2 (2013).
The Veteran's PTSD has been rated at 30 percent disabling from December 22, 2010 under the criteria found at 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. Psychiatric disabilities are evaluated under the General Rating Formula for Mental Disorders. Upon review, the Board finds that no other diagnostic code or rating schedule would be appropriate in the evaluation of the Veteran's psychiatric disability.
Under the General Rating Formula for Mental Disorders, a rating of 30 percent is warranted for PTSD if there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). Id.
A 50 percent rating is warranted if it is productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id.
A 70 percent rating, may be assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001).
The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id.
In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas."
In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32 (4th ed. 1994)).
A GAF score of 31-40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). A GAF score of 41-50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers). A GAF score of 61-70 indicates mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. DSM-IV at 46-47.
The GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard, 9 Vet. App. at 267; Carpenter v. Brown, 8 Vet. App. 240, 243 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue. The GAF score must be considered in light of the actual symptoms of a veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a) (2013).
In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).
Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown,
10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").
Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. Gilbert, 1 Vet. App. at 55. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id.
The Board has reviewed all the evidence in the Veteran's claims file, as well as Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the appeal for a higher initial disability rating for PTSD in excess of 30 percent.
Initial Rating for PTSD
The Veteran contends that a 70 percent disability rating is warranted for PTSD for the entire rating period. The Veteran contends that PTSD symptoms, including the inability to adapt to stressful situations or maintain marital relationships, and impaired impulse control with irritability and violence, are adequate to support a 70 percent disability rating.
After a review of the lay and medical evidence, the Board finds that, for the entire rating period, the evidence is in equipoise as to whether the severity of the Veteran's psychiatric symptoms more nearly approximate a rating based on occupational and social impairment with reduced reliability and productivity as described for a higher 50 percent rating under DC 9411. See 38 C.F.R. § 4.130. The Board finds that, for the entire rating period, service-connected PTSD has resulted in occupational and social impairment with reduced reliability and productivity due to symptoms which include the inability to adapt to stressful situations, difficulty establishing and maintaining effective social relationships, impaired impulse control with irritability and violence, hypervigilant behavior, fear and anxiety in crowds, memory impairment, and poor sleep with nightmares.
Regarding occupational impairment, the evidence shows that the Veteran's PTSD symptoms have interfered with work functioning; however, as the Veteran's symptoms have intensified, he has not worked in an occupational setting. The Veteran testified that he has not worked since 2006, pre-dating the date of the claim for service connection by approximately four years. See November 2012 Board hearing transcript at 17. The Veteran left his position as an automobile mechanic due to a post-service work-related accident where he fell and broke his arm and injured his back. See, e.g., February 2011 VA examination report. The February 2011 VA examiner did not provide any specific findings as to what, if any, occupational impairment has resulted from PTSD; however, during the November 2011 private mental health examination, the Veteran reported that "emotional factors did interfere with his employment." Although the Veteran was unable to identify specific impairment due to PTSD, he stated that he was "stressed out a lot, very emotional." The November 2011 private examiner summarized the occupational effects of PTSD as "impairment of performance on the job."
The February 2012 VA examiner assessed that mental health symptoms result in "occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation." The VA examiner assessed the symptoms caused difficulty in establishing and maintaining effective work relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The VA examiner's opinion was also consistent with statements from the Veteran indicating that PTSD symptoms had intensified over the past few years as a result of not being able to work, and the observation that the Veteran's PTSD symptoms - including difficulty falling asleep or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilence, and exaggerated startle response - cause "clinically significant distress or impairment in social, occupational, or other important areas of functioning." Similarly, the Veteran testified that his PTSD symptoms have worsened since leaving work in 2006, and that, in his current state, he would have a "terrible time" dealing with people in an occupational setting. See November 2012 Board hearing transcript at 19.
Regarding social impairment, the evidence demonstrates that the Veteran has been married five times and has difficulty establishing and maintaining other social relationships. The Veteran testified that PTSD symptoms were a contributing cause to his five unsuccessful marriages. Id. at 3. The Veteran stated that impaired impulse control, marked by irritability and violence, has interfered with his social relationships. Id. at 4-8. In addition, fear and anxiety about crowds has caused the Veteran to withdraw from public situations. Id. at 8-9. During the November 2011 private mental health examination, the Veteran described how interpersonal relationships are characterized by inner reserve and detachment, by touchy aggressive attitude, a history of fighting and assaultiveness, and by paranoid suspicious posture. The November 2011 examiner described PTSD symptoms generally as "multiple failed marriages, inability to get along with others, impairment of performance...off the job and more recently by a paranoid, suspicious and difficult posture." Several of these observations were also recorded by the February 2012 VA examiner, who noted symptoms including anxiety, suspiciousness, inability to establish and maintain effective social relationships, avoidance of friendship beyond acquaintance basis, feeling disconnected and misunderstood by most people, being defensive in interpersonal relationships, and being "overbearing, grouching, and controlling" in relationships. The February 2012 VA examiner also indicated persistent avoidance of stimuli associated with PTSD trauma, including feelings of detachment or estrangements from others, restricted range of affect (e.g., unable to have loving feelings), and efforts to avoid conversations and people that trigger recollections of the trauma.
During the February 2011 VA examination, the Veteran described positive social interactions with a number of neighbors and how he gets along well with his family and enjoys frequent visitation with those geographically closer to him. The Veteran also expressed an ability to go out and do various errands without significant trouble. Regarding his previous marriages, the VA examiner noted "a number of divorces, although a number of them seem to be related to other issues [besides PTSD], but one marriage to his second and third wife he describes a sleep related PTSD phenomena that interfered with the marriage there."
In addition to those symptoms that directly address occupational and social impairment, the evidence includes the presence of other symptoms and clinical observations which may have a bearing on, or which indicate the severity of, occupational and social impairment due to PTSD symptoms. GAF scores reported include a 55 (February 2012 VA examination), 48 (November 2011 private examination), and 68 (February 2011 VA examination).
During the February 2011 VA examination, the Veteran showed broad affect, euthymic mood, no impairment of thought processing or communication, no delusions or hallucinations, no suicidal or homicidal thinking, and appropriate eye contact and behavior. The Veteran also reported occasional anxiety, occasional depressed moods, poor sleep patterns, hypervigilant behavior, and subjective distress triggered by memories and reminders of trauma.
During the November 2011 private examination, the Veteran showed a cooperative and polite attitude, short attention span, increased psychomotor activity, normal affect, coherent speech patterns with some digression, somewhat impaired abstract thinking, alert self-presentation, average judgment and insight, and normal orientation to time, place, and person. The Veteran reported generally low energy levels, no suicidal ideation, frequent agitation, no obsessions or compulsions, paranoid ideation, no hallucinations, and nightmares.
The February 2012 VA examination report includes a checklist indicating the presence of symptoms including depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and disturbances of motivation and mood. The VA examiner also noted other symptoms including intrusive thoughts (two to three times per week), adverse reaction to reminders of Vietnam, guilt and shame associated with Vietnam, nightmares, flashbacks, obsessive cleaning rituals, keeping a loaded weapon by the bedside, and confusion and concern over changing mental status.
After consideration of the foregoing, the Board finds that, for the entire initial rating period, the Veteran's PTSD has been characterized by symptoms including the inability to adapt to stressful situations, difficulty establishing and maintaining effective social relationships, impaired impulse control with irritability and violence, hypervigilant behavior, memory impairment, fear and anxiety in crowds, and poor sleep with nightmares. The GAF scores ranged between 48 and 68 over a one year period, in which the Veteran reported a worsening in symptoms. Despite the range in GAF scores, the Veteran's psychiatric symptoms have been relatively consistent during the entire rating period. Although the evidence includes the February 2012 VA examiner's notation of "occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functions satisfactorily, with normal routine behavior, self-care and conversation" - language tracking the criteria for a 30 percent disability rating under DC 9411 - and a February 2011 GAF score of 68, indicating mild symptoms or some difficulty in social, occupational, or school functioning, the Board finds that, after resolving all reasonable doubt in favor of the Veteran, for the entire rating period the severity of the Veteran's occupational and social impairment and symptoms due to service-connected PTSD more nearly approximates the criteria a higher 50 percent disability rating. See 38 U.S.C.A.
§ 5107(b); 38 C.F.R. §§ 4.3, 4.7.
The Board has reviewed all the evidence of record, lay and medical, and finds that, for the entire initial rating period, the level of occupational and social impairment due to symptoms of PTSD have not met or more nearly approximated the criteria for a higher 70 percent disability rating. See 38 C.F.R. § 4.130. For the entire rating period, the record does not indicate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to PTSD.
The lay and medical evidence does not reveal any history of suicidal ideation. This was not a symptom noted in VA treatment records or in any of the three examinations included in the record. The Veteran did not testify to suicidal ideation during the November 2012 Board hearing or the November 2011 DRO hearing.
The evidence does show some obsessional behavior; however, it does not show obsessional rituals that interfere with routine activities. During the November 2012 Board hearing, the Veteran described the need to check for locked doors and locked windows when he is inside his home. See November 2012 Board hearing transcript at 11-12. He also stated that he keeps a gun at his bedside and carries a weapon wherever he goes. See id. at 12. The February 2012 VA examination notes behaviors including avoiding crowds, planes, and elevators, as well as a need for things in the home to be clean, precise, and uniform. However, the evidence does not demonstrate that these behaviors interfere with routine activities.
The lay and medical evidence does not show intermittently illogical, obscure, or irrelevant speech. The November 2011 private examiner indicated that "speech patterns tended to be coherent, but somewhat digressive," and that the Veteran was "well oriented to time, place and person." Similarly, the February 2011 VA examiner stated that there was "no impairment of thought processing or communication," and that "speech was within normal limits." On review of the letters received from the Veteran's friends and family in November 2011, illogical speech is not noted by anyone. In addition, a review of the lay and medical evidence does not reveal neglect of personal appearance or hygiene, nor does it show spatial disorientation or near-continuous panic or depression affecting the ability to function independently.
As to the Veteran's ability to establish and maintain effective relationships, the evidence more nearly approximates "difficulty," rather than "inability," to establish and maintain effective relationships. The February 2011 VA examination report describes how the Veteran "has 4 children and reports getting along very well with them and greatly enjoys time with 7 of his grandchildren." The examination report also noted "positive social interactions with a number of neighbors." The February 2012 VA examination report describes a bleaker outlook, including a "minimal social support network," relationships centered on dependability rather than emotional compatibility, and avoidance of friendships beyond acquaintance basis. The Veteran testified that he maintains three close friendships but does not go out socially with them. See November 2012 Board transcript at 22. The Veteran presently lives with a woman who has been described as a girlfriend, but also as a renter and a friend. As of the November 2012 Board hearing, this woman had been living with the Veteran for approximately six years. As noted previously, the Veteran has divorced five times. Given evidence of some positive relationships with friends and family, the Board finds that the evidence does not support a finding that the Veteran is unable to establish and maintain effective relationships.
After consideration of the foregoing, the Board finds that, for the entire initial rating period, the level of occupational and social impairment due to PTSD symptoms does not meet or more nearly approximate the next higher 70 percent rating criteria under DC 9411. Even though the Veteran exhibited impaired impulse control, the Veteran's PTSD symptoms, as a whole, show a degree of occupational and social impairment that is contemplated by the 50 percent rating. See 38 C.F.R. § 4.7 (the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating, otherwise, the lower rating will be assigned). Because preponderance of the evidence is against the appeal for an initial rating in excess of 50 percent for PTSD for any period, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.
Extraschedular Consideration
The Board has considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2013); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993).
Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating.
Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's PTSD is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Code 9411, specifically provides for disability ratings based on a combination of history and clinical findings. In this case, considering the lay and medical evidence, the Veteran's PTSD has manifested symptoms including the inability to adapt to stressful situations, difficulty establishing and maintaining effective social relationships, impaired impulse control with irritability and violence, hypervigilant behavior, fear and anxiety in crowds, memory impairment, and poor sleep with nightmares. These symptoms are either explicitly part of the schedular rating criteria or are "like or similar to" those symptoms and impairment explicitly listed in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. The levels of occupational and social impairment are also explicitly part of the schedular rating criteria. In addition, the GAF scores are incorporated as part of the schedular rating criteria as they tend to show the overall severity of symptomatology or overall degree of impairment in occupational and social functioning.
The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations.
38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the
Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with PTSD, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown,
9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
The Board emphasizes that entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU rating under 38 C.F.R. § 4.16(b), although having some similar criteria such as questions of the degree of interference of impairment, are based on different and non-overlapping criteria. See Kellar v. Brown, 6 Vet. App. 157, 162 (1994). An extraschedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular rating criteria for a particular disability are inadequate to compensate for the average impairment of earning capacity due to that disability. In contrast, 38 C.F.R. § 4.16(b) requires a determination that a particular veteran be rendered unable to secure or follow a substantially gainful employment, and such determination as to unemployability is based on all the service-connected disabilities rather than a single disability. See VAOPGCPREC 6-96. As the
schedular rating criteria are adequate to compensate for the average impairment of earning capacity due to PTSD in this case, the Board finds that any remaining questions regarding TDIU shall be resolved with additional development pursuant to 38 C.F.R. § 4.16(b).
ORDER
For the entire rating period, a higher initial 50 percent rating for PTSD, but not higher, is granted.
The appeal of service connection for diabetes is dismissed.
The appeal to reopen service connection for skin tumors is dismissed.
The appeal to reopen service connection for a right eye disorder is dismissed.
The appeal to reopen service connection for prostatitis is dismissed.
REMAND
TDIU
During the November 2012 Board hearing, the Veteran testified that he is unable to work due to service-connected PTSD. See November 2012 Board hearing transcript at 17. The Veteran's representative also contended that the Veteran cannot work due to an increase in severity of PTSD symptoms. See id. at 23. Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim identify the benefit sought has been satisfied and VA must consider whether the veteran is entitled to a TDIU. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (VA to determine all potential claims raised by the evidence, applying all relevant laws and regulations). VA regulations provide that, where a veteran is unemployable by reason of service-connected disabilities but fails to meet the combined rating percentage standards under 38 C.F.R. § 4.16(a), the case must be submitted to the Director of Compensation and Pension Service for extra-schedular consideration. See
38 C.F.R. § 4.16(b) (2013); Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (where a claimant does not meet the schedular requirements of 4.16(a), the Board has no authority to assign a TDIU rating under 4.16(b) and may only refer the claim to the Compensation and Pension Director for extraschedular consideration).
Accordingly, the issue of TDIU is REMANDED for the following action:
1. The RO should send the Veteran additional VCAA notice as to the issue of entitlement to TDIU and conduct any necessary development, and adjudicate this issue.
38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013).
If it is determined that the Veteran's service-connected disability picture fails to meet the combined rating percentage standards under 38 C.F.R. § 4.16(a), adjudication should include referral to the Director of Compensation and Pension Service for consideration of the assignment of TDIU under 38 C.F.R. § 4.16(b).
2. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case, and should be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.
The Veteran and his representative have the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See
38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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J. PARKER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs